Citation NR: 9738553
Decision Date: 11/19/97 Archive Date: 12/02/97
DOCKET NO. 95-13 907 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for a bilateral eye
disorder.
2. Entitlement to service connection for a right ear
disorder.
3. Entitlement to an increased rating for postoperative
residuals of fracture of the right medial malleolus,
currently rated as 10 percent disabling.
4. Entitlement to an increased (compensable) rating for a
donor site scar of the left anterior iliac crest.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from March 1952 to February
1961.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a decision of February 1995 by the
Department of Veterans Affairs (VA) Detroit, Michigan,
Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO made a mistake by denying
his claim for service connection for a bilateral eye
disorder. He asserts that he sustained burns to his eyes
while rescuing a pilot from a burning plane.
The veteran contends that service connection should be
granted for a right ear disorder. He asserts that he hurt
his ear when a large gun was fired aboard his ship.
The veteran also contends that the RO should have assigned an
increased rating for postoperative residuals of fracture of
the right medial malleolus, currently rated as 10 percent
disabling. He states that the ankle gives away and causes
him to fall. He also states that the ankle swells a lot,
that he cannot bend it, and that he has pain in the ankle.
Finally, the veteran contends that he is entitled to an
increased (compensable) rating for a scar of the left
anterior iliac crest. He states that the scar at the donor
site causes extreme pain.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran’s service
connection claims are not well-grounded. It is also the
decision of the Board that the preponderance of the evidence
is against the claims for increased ratings.
FINDINGS OF FACT
1. The veteran has not presented any competent evidence
showing that he currently has an eye disorder which is
related to service.
2. The veteran has not presented any competent evidence
showing that he currently has a right ear disorder which is
related to service.
3. The postoperative residuals of fracture of the right
medial malleolus are not productive of more than moderate
limitation of motion of the ankle.
4. The scar of the left anterior iliac crest is not painful
and tender on objective demonstration, and is not productive
of limitation of function.
CONCLUSIONS OF LAW
1. The veteran has not presented evidence sufficient to
justify a belief by a fair and impartial individual that his
claim for service connection for a bilateral eye disorder is
well-grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991).
2. The veteran has not presented evidence sufficient to
justify a belief by a fair and impartial individual that his
claim for service connection for a right ear disorder is
well-grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991).
3. The criteria for a rating higher than 10 percent for
postoperative residuals of fracture of the right medial
malleolus are not met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code
5271 (1996).
4. The criteria for a compensable rating for a scar of the
left anterior iliac crest are not met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7804,
7805 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In reviewing any claim for VA benefits, the initial question
is whether the claim is well-grounded. The veteran has “the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well-
grounded.” See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8
Vet. App. 69, 73 (1995). A well-grounded claim is “a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107].” See Murphy v. Derwinski, 1 Vet.App. 78, 81
(1991). If not, the claim must be denied and there is no
further duty to assist the veteran with the development of
evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a)
(West 1991).
I. Entitlement to Service Connection For A Bilateral Eye
Disorder.
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131 (West 1991). In order for a claim
for service connection to be well-grounded, there must be
competent evidence of current disability, of incurrence or
aggravation of a disease or injury in service, and a nexus
between the in-service injury or disease and the current
disability. Medical evidence is required to prove the
existence of a current disability and to fulfill the nexus
requirement. Lay or medical evidence, as appropriate, may be
used to substantiate service incurrence. See Caluza v.
Brown, 7 Vet.App. 498, 506 (1995) (citations omitted).
The veteran’s service medical records do not contain any
significant references to injuries or burns affecting the
veteran’s eyes. Although a service medical record dated in
January 1960 shows that the veteran had a foreign body in his
left eye, the particle was removed with a wet cotton swab,
and there is no mention of the foreign body having caused
injury.
Furthermore, the report of a medical examination conducted in
February 1961 for the purpose of the veteran’s separation
from service shows that clinical evaluation of the eyes was
normal. His distance vision was 20/20 in both eyes. Thus,
the veteran’s service medical records do not provide any
support for the veteran’s claim.
The Board also notes that the veteran has not provided any
evidence that he currently has a disorder of the eyes. The
report of a disability evaluation examination conducted by
the VA in November 1994 does not contain any abnormal
examination findings regarding the eyes. A service-
connection claim must be accompanied by evidence which
establishes that the claimant currently has the claimed
disability. See Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
Although the veteran has expressed his own opinion that he
has an eye disorder which is related to service, the United
States Court of Veterans Appeals (Court) has held that lay
persons, such as the veteran, are not qualified to offer an
opinion that requires medical knowledge, such as a diagnosis
or an opinion as to the cause of a disability. See Espiritu
v. Derwinski, 2 Vet.App. 492, 494-5 (1992). See also
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), in which the
Court held that a veteran does not meet his burden of
presenting evidence of a well-grounded claim where the
determinative issue involves medical causation and the
veteran presents only lay testimony by persons not competent
to offer medical opinions.
In summary, the veteran has not presented any competent
evidence showing that he currently has an eye disorder which
is related to service. Accordingly, the Board concludes that
the veteran has not presented evidence sufficient to justify
a belief by a fair and impartial individual that his claim
for service connection for a bilateral eye disorder is well-
grounded.
II. Entitlement To Service Connection For A Right Ear
Disorder.
The veteran’s service medical records do not contain any
significant references to a right ear disorder. The report
of a medical examination conducted in February 1961 for the
purpose of the veteran’s separation from service shows that
clinical evaluation of the ears was normal. His hearing, as
tested by spoken and whispered voice, was 15/15.
The veteran also has failed to present any post service
evidence of the presence of a right ear disorder. The report
of a disability evaluation examination conducted by the VA in
November 1994 does not contain any abnormal findings
regarding the ears.
In summary, the veteran has not presented any competent
evidence showing that he currently has a right ear disorder
which is related to service. Accordingly, the Board
concludes that the veteran has not presented evidence
sufficient to justify a belief by a fair and impartial
individual that his claim for service connection for a right
ear disorder is well-grounded.
In reaching the foregoing dispositions of the veteran’s
service connection claims, the Board recognizes that these
issues are being disposed of in a manner slightly different
from that employed by the RO. Therefore, the Board has
considered whether the veteran has been given adequate notice
to respond, and, if not, whether he has been prejudiced
thereby. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
In light of his failure to meet his initial obligation in the
adjudication process, and because the outcome would be the
same whether the claim was treated as not well grounded or
adjudicated on the merits, the Board concludes that he has
not been prejudiced by this decision. Furthermore, this
decision does not stand as a bar to any future attempts to
secure service connection in this regard. See Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). For purposes of a future
claim, the difference between evidence required to render the
claim well grounded and that required to reopen a previously
disallowed claim because of "new and material" evidence
appears to be slight. See Edenfield v. Brown, 8 Vet.App.
384, 390 (1995) (en banc). Further, the Board views its
discussion as sufficient to inform the veteran of the
evidence which he must present in order to make his claims
well-grounded, and the reasons why his current claims are
inadequate. See Robinette v. Brown, 8 Vet.App. 69, 77-78
(1995).
III. Entitlement To An Increased Rating For Postoperative
Residuals Of Fracture Of The Right Medial Malleolus,
Currently Rated As 10 Percent Disabling.
The Court has held that a mere allegation that a service-
connected disability has become more severe is sufficient to
establish a well-grounded claim for an increased rating. See
Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v.
Derwinski, 2 Vet.App 629, 632 (1992). Accordingly, the Board
finds that the veteran’s claim for an increased rating is
“well-grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991).
Once a claimant has presented a well-grounded claim, the VA
has a duty to assist the claimant in developing facts which
are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West
1991). The Board finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained. The evidence includes the veteran’s service
medical records, and some post-service medical treatment
records. The veteran has been afforded a disability
evaluation examination. He has declined the opportunity to
have a personal hearing. The Board does not know of any
additional relevant evidence which is available. Therefore,
no further assistance to the veteran with the development of
evidence is required.
The Board has considered the full history of the veteran’s
service-connected disability. The veteran’s service medical
records show that the veteran sustained a fracture to his
right ankle in an automobile accident in June 1955. The
veteran subsequently underwent surgery in which a bone graft
was placed in the ankle using a donation from the veteran’s
left hip.
In November 1963, the veteran filed a claim with the VA for
disability compensation for a right ankle injury and a left
hip disorder. The veteran was afforded a disability
evaluation examination by the VA in February 1964.
Subsequently, in a rating decision of March 1964, the RO
granted service connection for postoperative residuals of a
fracture of the right medial malleolus, rated as
noncompensably disabling, and a donor site scar of the left
anterior iliac area, also rated as noncompensably disabling.
The veteran was afforded another disability evaluation
examination by the VA in July 1986. The report shows that
the diagnosis was status post fracture of right ankle with
later internal fixation and bone graft of medial malleolus
with residual minimal osteoporosis and minimal degenerative
arthritis. Subsequently, in a decision of August 1986, the
RO increased the rating for the right ankle disorder to 10
percent. The RO confirmed the 10 percent rating in a
decision of June 1990.
In August 1994, the veteran requested an increased rating for
the right ankle disorder. The RO denied that request, and
the veteran perfected this appeal.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155 (West 1991). Separate diagnostic codes identify the
various disabilities. Under 38 C.F.R. § 4.71a, Diagnostic
Code 5271, a 10 percent rating is warranted when there is
moderate limitation of motion of the ankle. A 20 percent
rating may be assigned when there is marked limitation of
motion.
The Court has emphasized that when assigning a disability
rating, it is necessary to consider functional loss due to
flare-ups, fatigability, incoordination, and pain on
movements. See DeLuca v. Brown, 8 Vet.App. 202, 206-7
(1995). The rating for an orthopedic disorder should reflect
functional limitation which is due to pain which is supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. See 38 C.F.R. § 4.40 (1996). The factors of
disability reside in reductions of their normal excursion of
movements in different planes. Instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight bearing are related considerations. See
38 C.F.R. § 4.45 (1996). It is the intention of the rating
schedule to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimal compensable rating for the joint. See
38 C.F.R. § 4.59 (1996).
The only evidence pertaining to the current severity of the
right ankle disorder is a report of an orthopedic examination
of the veteran conducted by the VA in November 1994. The
report shows that the veteran gave a history of having a
shrapnel injury to his left hip and also an injury to his
right ankle. He related that he was taken to a hospital
where his laceration was sewn up, and his ankle was wrapped
in a small cast. The veteran’s subjective complaints
included having daily pain in the right ankle which was
aggravated by any prolonged standing or walking. The veteran
stated that he had utilized crutches for the past 13 years
because of his progressive right malleolar pain.
On objective examination, there was bony prominence of the
right medial malleolus, but no effusion or swelling. There
was decreased motion of the right ankle, with dorsiflexion to
10 degrees, and plantar flexion to 32 degrees. The examiner
noted that there was extreme discomfort to palpation with any
manipulation. The Board notes that normal dorsiflexion is to
20 degrees while normal, plantar flexion is to 45 degrees.
See 38 C.F.R. § 4.71, Plates II (1996).
The pertinent diagnosis was history of chronic right
malleolar pain secondary to previous trauma with resultant
probable fracture, right medial malleolus; status post
probable open reduction internal fixation utilizing a bone
graft left anterior iliac crest; chronic arthralgia right
malleolus, probable post-traumatic degenerative joint
disease.
After considering all of the evidence of record, the Board
finds that the postoperative residuals of fracture of the
right medial malleolus are not productive of more than
moderate limitation of motion of the ankle. Accordingly, the
Board concludes that the criteria for a rating higher than 10
percent for postoperative residuals of fracture of the right
medial malleolus are not met.
IV. Entitlement To An Increased (Compensable) Rating For A
Scar Of The Left Anterior Iliac Crest.
As was noted above, the veteran has established service
connection for a donor site scar of the left anterior iliac
crest. The only evidence pertaining to the current severity
of that disorder is the VA orthopedic examination report
dated in November 1994. The report shows that examination
revealed a healed scar on the left anterior iliac crest. The
assessment was history of left hip pain secondary to previous
probable shrapnel injury per veteran history with resultant
laceration treated with suture of wound, well healed; and
status post donor site left hip for right malleolar recipient
site, well healed, currently intermittently symptomatic. The
ranges of motion of the right and left hip were approximately
even. The left hip had flexion to 120 degrees, extension to
12 degrees, adduction to 25 degrees, abduction to 40 degrees,
external rotation to 50 degrees, and internal rotation to 35
degrees.
Under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1996), a 10
percent rating may be assigned if a scar is painful and
tender on objective demonstration. The scar may also be
rated under Diagnostic Code 7805 based on any limitation of
function of the part of the body where the scar is located.
Under 38 C.F.R. § 4.31 (1996), however, a zero percent rating
shall be assigned when the requirements for a compensable
evaluation are not met.
Although the scar reportedly was intermittently symptomatic,
no objective findings of tenderness were noted. The range of
motion of the hip apparently was not affected by the scar.
The Board finds that the scar of the left anterior iliac
crest is not painful and tender on objective demonstration,
and is not productive of limitation of function.
Accordingly, the Board concludes that the criteria for a
compensable rating for a scar of the left anterior iliac
crest are not met.
The above decisions are based on the VA Schedule for Rating
Disabilities. In Floyd v. Brown, 9 Vet.App. 88, 96 (1996),
the Court held that the Board does not have jurisdiction to
assign extra-schedular evaluations under 38 C.F.R.
§ 3.321(b)(1), in the first instance. However, there has
been no assertion or showing that service-connected
disability has caused marked interference with employment or
necessitated frequent periods of hospitalization. In the
absence of such factors, the Board is not required to remand
this matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet.App.
157, 158-9 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227
(1995).
ORDER
1. Service connection for a bilateral eye disorder is
denied.
2. Service connection for a right ear disorder is denied.
3. An increased rating for postoperative residuals of
fracture of the right medial malleolus, currently rated as 10
percent disabling, is denied.
4. An increased (compensable) rating for a scar of the left
anterior iliac crest is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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